There were two major differences between the powerful defense figures – one wore a uniform and the other did not.

It doesn’t seem fair.

The State Comptroller’s Report on the Harpaz
Affair, which came out on January 6, aimed its strongest criticism at former IDF
chief of staff Gabi Ashkenazi, but lambasted both Ashkenazi and outgoing Defense
Minister Ehud Barak pretty equally.

According to the report, both had
staff people spying on each other to varying degrees and both crossed lines
regarding their authority and interfering in the other’s affairs.

So why
did Attorney-General Yehuda Weinstein decide on Tuesday night, only weeks after
indicting former foreign minister Avigdor Liberman, to open a military criminal
investigation into Ashkenazi’s conduct, and leave Barak in the clear?
Weinstein’s decision specifically rejects investigating Ashkenazi for any
criminal charges that a civilian could be charged with under the Penal Law. He
also made it clear that the military police, not the civilian police, will be
the ones investigation Ashkenazi and his former top aide, Col.

Erez
Viner.

“Conduct unbecoming” a soldier, the charge Ashkenazi is being
investigated for, does not exist under civilian law, which explains part of the
fundamental difference between the treatment of him and Barak.

While the
IDF chief of staff is one of the most powerful figures in the country, in the
eyes of the law, special rules and regulations apply to anyone who wears a
uniform.

Even if Barak and Ashkenazi’s actions regarding the Harpaz
Affair were equally blameworthy from an objective point of view, or even if
Barak was worse, their different uniforms, or Barak’s lack of one during the
affair, mean they will be treated differently.

Barak cannot be charged
for “conduct unbecoming” no matter how problematic Weinstein or any other
official might find his behavior. Ashkenazi, on the other hand, is judged by a
higher standard, as he was a soldier during the incident.

No matter how
wrong Barak may have been with certain of his actions, he was Ashkenazi’s
civilian superior, and if democracy is to be secure from military takeovers,
there can be no second-guessing civilian decision-makers, not even by a highly
popular IDF chief of staff.

Despite all that, Ashkenazi is still far from
being in serious trouble.

The State Comptroller’s Report was damning in a
very specific way toward Viner, but was much more general regarding Ashkenazi.
Weinstein’s decision is simply to investigate, not indict, and is far from a
court conviction.

Even if Ashkenazi is eventually convicted, a finding of
conduct unbecoming will probably not legally impact his potential political
career. Although the charge carries a maximum sentence of one-year imprisonment,
maximum sentences are rarely used and Ashkenazi is no longer in the
IDF.

The damage to his public image would be more significant, but
Ashkenazi may be able to still shift much of the blame on to Barak in the court
of public opinion. First he will need to invest in significant legal and
political resources to fight for his innocence and rehabilitate his
image.

Worst of all, he will need to continue tolerating his name
appearing in headlines with the loose-cannon now-pariah Boaz Harpaz.